Events in parliament and the courts have been dramatic. But for every constitutional reaction there has been an equal and opposite reaction to maintain the balanceby Adam Tomkins / October 4, 2019 / Leave a comment
There is no constitutional crisis in the United Kingdom. There would be had the constitution broken down but, thus far, it is rising to all the challenges Brexit has thrown at it. Amid political crises, and this is certainly one, parts of the system are prone to push harder than normal, but the stresses can be managed as long as other parts push back equally hard—and so it has proved. In this way equilibrium is retained. September’s historic Supreme Court ruling that the prime minister had acted unlawfully in advising the queen to prorogue parliament for five weeks is a case in point.
For 400 years our courts have been laying down the legal limits to prerogative powers such as the power to prorogue. There is nothing new in the proposition that, when it comes to a clash between the ancient powers of the crown and the interests of parliament, the courts will tend to rule in favour of the latter. Since the 17th century it has been the most fundamental principle of our constitution that the government of the day is subject to the will of parliament, and not the other way around. All the 11 justices of the Supreme Court did in the case brought by campaigner Gina Miller and SNP MP Joanna Cherry was to give (admittedly dramatic) effect to this basic principle of our constitutional order.
Which is not to say that nothing of importance was decided in Miller/Cherry. In its decision, the Supreme Court did stretch the doctrine of parliamentary sovereignty further than before; likewise, the justices broke new ground in elevating our tradition of ministerial accountability to parliament from a mere convention to a judicially-enforceable “constitutional principle.” But in both instances the Supreme Court did what common lawyers have been doing since the time of Edward Coke in the early 17th century. They developed the law incrementally, on the basis of past authorities, with a careful eye on the extent to which any novel statements in the case could be used as precedents for future developments in the law.
Overblown claims that the judgment amounted to a judicial incursion into politics are just that—hyperbole. To my mind, it is beyond argument that today’s courts do intervene too freely in political decision-making. But not in this case. When, under instruments such as the Human Rights Act, courts take it upon themselves to weigh incommensurate public goods (freedom of movement versus protection of national security, for example), they are not judging against a standard of law, but exercising a political judgment which is properly the domain of ministers and parliamentarians—not the courts. But no such question arose in Miller/Cherry.
“A newly assertive government has been answered by a newly assertive parliament and, now, an assertive court, too. Thus has the balance of the constitution been maintained”
Miller/Cherry involved no point of human rights or European law. It was a good old-fashioned constitutional law dispute about the legal limits of the crown’s powers. And, since the death of the theory of the divine right of kings, the courts (and the courts alone) have enjoyed the power to rule on a question such as this.
Brexit poses challenges for constitutional law because it puts front and centre decision-makers who are normally only in the background in our constitution—the people themselves. We are leaving the European Union because the people voted for it directly. We are not doing it because the government wills it; still less because parliament wants it.
I much prefer representative democracy to its brasher relative, direct democracy. One reason for this is that popular democracy encourages populism more generally, whereas parliamentary democracy tends to act as a brake on populism. Be that as it may, what is undeniable is that our constitution is working well to ensure that the rise of populism in British politics does not lead to more authoritarian government. How easy—in theory—it might have seemed to the government, in the name of the people, to seek to bypass those awkward institutions standing in the people’s way. And yet, how difficult in practice taking this path has turned out to be.
Both politics and the law have played their constitutional roles to block it. Party discipline in the House of Commons has so broken down that MPs have seized control of the order paper and enacted legislation to deny ministers the powers they crave. At the same time, our Supreme Court justices have underscored, in the clearest terms, that the constitution insists that the executive acts subject to—not regardless of—the will of the Commons. A newly assertive government has been answered by a newly assertive parliament and, now, an assertive court, too. Thus has the balance of the constitution been maintained.
This is not the victory of Remainers over Leavers—at the time of writing we are still on course to leave the EU. It is the victory of our Burkean constitution over the revolutionary impulses of the Rousseauians who, if they could, would force us to be “free” (as they define it). Or, to return to a 17th-century idiom, it is a reminder that the Cavaliers lost and that ours is, despite the challenges of modern populism, an emphatically parliamentary constitution. Successful prime ministers in the 21st century, just like successful monarchs in the 17th, are those who learn fast that they must govern with and through parliament, no matter how inconvenient to their programme that might be.